Guardianship and Developmental Disabilities

Surrogate Decision Making for People with Developmental Disabilities

Susie is 18 years old. She has been diagnosed with
Aspergerâ€™s syndrome, which makes it difficult for her to socialize and
communicate with others. She attends a school for children with special needs but is planning to attend a special course of study at a local community
college after she graduates from high school. As there is a presumption that
all 18 year-olds are competent adults, Susie is expected to be able to make
legal, financial, and medical decisions for herself, but she plainly needs
assistance in those areas. Since Susie is high-functioning, she can sign a
power of attorney and a health care proxy designating her parents as agents to make
legal, financial, and residential decisions for her. Susie, however, has a
legal right to revoke those documents at any time.

Bill
also is 18 years old. He has been diagnosed with an autism spectrum disorder.
Bill also attends a school for children with special needs, but his ability to
communicate is severely limited. He cannot read or write. The law presumes that
Bill can manage his financial and medical affairs now that he is 18 years old,
but he is unable to do so. Bill requires a guardianship so that his parents can
make legal, financial, and medical decisions for him.

Guardianship
is a legal proceeding whereby a court appoints someone to make decisions for a person
who is cognitively impaired and cannot manage his or her affairs. Guardianship
is a creature of state law, and therefore, the application process varies from
state to state. In some states, the legal relationship between the person in
need of guardianship services and the individual appointed to make decisions
for that person is called a conservatorship.

Some
individuals with developmental disabilities can make some decisions but may need
assistance in other areas. In such cases, a limited guardianship, whereby the
person who needs guardianship services retains the power to make some
decisions, may be appropriate.

Guardianships
can be temporary or permanent, depending on the needs of the incapacitated
person. If the person is no longer incapacitated, the court can enter an order
discharging the guardian.

The
guardianship process may take several weeks or months to complete. While it is
not necessary to retain an attorney to initiate a guardianship application,
many parents do so to ensure that their child will be adequately protected.

While
guardianships often are necessary, they should not undermine the incapacitated
personâ€™s right to self-determination. Least restrictive measures should be
considered, such as the execution of powers of attorneys and health care
proxies, as well as limited guardianships.

This
information is provided as a public service and is not intended as legal
advice. Such advice should be obtained from a qualified Elder Law attorney. To
find one in your area, visit www.NAELA.org, and click on "Find an
Attorney."